Top Court in Sri Lanka to hear Gotabaya’s pardon to ex-army murder convict

The Supreme Court of Sri Lanka on Thursday (12) decided to hear an appeal against the Presidential pardon granted to a former staff sergeant convicted for his role in the infamous Mirusuvil Massacre.

The top court granted leave to proceed with the petition filed by the Centre for Policy Alternatives (CPA) and its Executive Director who challenged the controversial pardon granted to him by the ousted President Gotabaya Rajapaksa.

Staff Sergeant Sunil Ratnayake was convicted in 2015 for the massacre of eight Tamil civilians, including three children, in the Mirusuvil village of Jaffna district in December 2000.

His conviction and death sentence were upheld by the Supreme Court in 2019.

However, during the Covid-19 crisis and while Sri Lanka was grappling to deal with it, Gotabaya Rajapaksha pardoned him on the 26th of March 2020.

Family members of those massacred joined Packiyasothy Saravanamuttu, Executive Director of the CPA in filing the Fundamental Rights Applications challenging the decision to pardon Sunil Rathnayake.

While accepting the petition for further hearing, the Supreme Court granted time to the respondents and fixed the hearing for the 17th May 2024.

Nine innocent internally displaced Tamil civilians from Mirusuvil were returning after visiting their ancestor home, which hadn’t yet been returned to them after the war when they were waylaid by two Military personnel, who then blindfolded and assaulted the group. However, one youth escaped, leaving the rest to be brutally massacred whose bodies were later found buried nearby.

Sunil Ratnayake was convicted on several counts of murder and assault by the High Court of Colombo in July 2015. The trial took 13 years to be completed and finally convicted him.

His appeal in the Supreme Court was heard by a bench of five judges. After the hearing the judges upheld 9 counts on which he was convicted, which included 8 counts of murder and death sentence awarded, although executions are not carried out in Sri Lanka for nearly five decades now.

The CPA in a statement said “This was a rare instance, despite the delays, when justice was served for serious violations that occurred during the war years”.

Under Article 34 of the Constitution the President has been given the power to grant pardons but several additional procedural steps must be followed when the convict is on death row. Additionally, the President is required to exercise any power reasonably, and in the public interest.

However, in this case it is the position of the Petitioners that the decision to pardon Ratnayake is arbitrary, unreasonable, ultra vires and has not been done in the interest of the public interest. This is especially so for the reason that Ratnayake was afforded due process, and there was no miscarriage of justice the CPA said in its statement.

“The Petitioners have also taken up the position that to pardon a convict of a crime of this gravity when 5 judges of the Supreme Court have affirmed his sentence undermines the independence of the Judiciary and is an affront to the rule of law. The pardon is thus a violation of the sovereignty of the people, and the Fundamental Rights guaranteed under Article 12(1) of the Constitution”.

The International Commission of Jurists (ICJ) while condemning the pardon at that time said that “the pardon cast serious doubt upon the Government’s commitment to accountability and the rule of law in Sri Lanka”

Although the ICJ had welcomed the lifting of the death sentence has strongly criticized the Sri Lankan government for granting such a pardon in an arbitrary manner. Frederick Rawaski, ICJ’s Regional Director for Asia and the Pacific at the time when the pardon was granted in 2020 said:

“Such a pardon is incompatible with international standards relating to impunity and access to justice, and reinforces the well-founded public perception that the military is exempt from any form of accountability, even for the most heinous crimes”.

Adding further he had stressed that for serious crimes such as the unlawful killing of civilians, there should be no amnesties or pardons that are inconsistent with the right to victims of such violations to reparation.